Re Loqmani and Minister for Immigration and Citizenship

[2008] AATA 74

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] aata 74

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/2487

GENERAL ADMINISTRATIVE DIVISION		)
Re		ABDUL WAKIL LOQMANI

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Senior Member L Hastwell

Date29 January 2008

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

..............................................

L HASTWELL
  (Senior Member)

CATCHWORDS

FREEDOM OF INFORMATION – request to amend record under Freedom of Information Act 1982 – date of birth – burden of proof – are records incorrect, incomplete, out of date or misleading – Afghani refugee – no birth records kept – consideration of all other available information – insufficient evidence to determine date of birth other than the date in Departmental records – decision affirmed

Freedom of Information Act 1982 (Cth) ss 4, 15, 48, 50, 55, 61

Re Bashari and Ors and Minister for Immigration and Multicultural Affairs [2006] AATA 839

REASONS FOR DECISION

29 January 2008   Senior Member L Hastwell   

1.      Abdul Wakil Loqmani (the applicant) seeks review of a decision made by a Freedom of Information Officer on 17 April 2007 not to amend his date of birth as contained in the records of the Department of Immigration and Citizenship (the Department).  The basis of that decision was that his date of birth as recorded by the Department was not incorrect, incomplete, out of date or misleading.

2.      The applicant arrived in Australia in 1999 seeking asylum.  His age and date of birth have been recorded a number of different ways in documentation held by the Department.  Since 2000 the Department’s official records record his date of birth as being 1 January 1953.  The applicant asks that the date be amended to reflect what he says to be his correct year of birth, namely 1942.  The applicant does not know his day of birth and for convenience it has been recorded in Departmental records as being 1 January 1953.

relevant legislation

3.      His application arises under the Freedom of Information Act 1982 (Cth) (the FOI Act).

4. Section 48 of the FOI Act provides for amendment or annotation of a document of an agency or an official document of a Minister in certain circumstances. It provides as follows:

“48      Application for amendment or annotation of personal records

Where a person claims that a document of an agency or an official document of a Minister to which access has been lawfully provided to the person, whether under this Act or otherwise, contains personal information about that person:

(a)      that is incomplete, incorrect, out of date or misleading; and

(b)that has been used, is being used or is available for use by the agency or Minister for an administrative purpose;

the person may apply to the agency or Minister for:

(c)      an amendment; or

(d)      an annotation;

of the record of that information kept by the agency or Minister.”

5. Section 50 of the FOI act provides that where the agency or Minister is satisfied that the record is incorrect, incomplete or out of date the record can be amended either by altering the document or by adding to or noting the document.

6. Section 55 of the FOI act provides for a right of review to this Tribunal in the following terms:

“55      Applications to Administrative Appeals Tribunal

(1)Subject to this section, an application may be made to the Administrative Appeals Tribunal for review of:

(a)a decision refusing to grant access to a document in accordance with a request; or

(aa)a decision granting access to a document but not granting, in accordance with a request, access to all documents to which the request relates; or

(ab)a decision purporting to grant, in accordance with a request, access to all documents to which the request relates, but not actually granting that access; or

…

(g)a decision refusing to amend a record of personal information in accordance with an application made under section 48; …”

7. Section 61 of the FOI Act refers to the Department carrying an onus of proof in some matters arising under the FOI Act. The relevant provision is as follows:

“61       Onus

(1)Subject to subsection (2), in proceedings under this Part, the agency or Minister to which or to whom the request was made has the onus of establishing that a decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant.

…”

issues

8.      The issues to be determined in this case are:

·Does s 61 of the FOI act impose a specific burden of proof on the Department in this case to satisfy the Tribunal that the reviewable decision was justified or that the Tribunal should give a decision adverse to the applicant?

·Whether the personal information with respect to the applicant’s date of birth as held by the Department is incorrect, incomplete, out of date or misleading.

request for access to documents

9. The applicant does not seek review of the decision by the Department to exempt certain documents from disclosure to him under the FOI Act. His application for review specifically refers to a review of the decision with respect to his date of birth and the Tribunal need not address issues raised by the Department’s counsel in an affidavit received in the Tribunal on 15 November 2007. This affidavit explained why certain documents were exempted pursuant to the FOI Act. The applicant has raised no challenge with these exemptions.

the hearing

10.     The applicant represented himself at the hearing.  He was assisted by an interpreter in the Dari language.  The Department was represented by counsel.  Neither party called any witnesses.  The T documents were received into evidence as were a number of exhibits, which will be referred to where relevant.

11.     The applicant asked the Tribunal to accept that he is now 65 years of age and that he was born in 1942.

12.     He described to the Tribunal his experience of travelling to Australia by boat when he left Afghanistan to seek asylum elsewhere.  The voyage was traumatic.  The people smuggler, who had arranged his passage out of Afghanistan, provided him with a false passport but then took it from him when he reached Indonesia.  He arrived on Ashmore reef after a 16 day treacherous voyage from Indonesia with nothing but his Wahdat Party Identity Card (ST2/275) and some meagre personal possessions.

13.      He was initially interviewed by officers of the Department in Darwin.  He spoke no English and all communications were with the assistance of an interpreter.  He was then moved to the Detention Centre in Woomera where he spent some months before being granted a temporary protection visa.  He now holds a subclass 866 Protection (Class XA) visa.

14.     He said that the pressures and difficulties that were then put on him by the Australian Government when he was detained at Woomera made him “lose his mind completely” and he was unable to remember or think clearly during that early period in Australia. 

15.     He recalls being interviewed by officers of the Department upon his arrival in Darwin, but does not recall what he told them about his date of birth.  He was shown a document dated 20 December 1999 (T5/78).  This was the first written record of his arrival in Australia and which recorded his date of birth as being 1942.  He had no recollection of that document.

16.     When he lived in Afghanistan he resided in a rural area.  He was a farmer and he was also the Mozen in his community, namely the person who gave the call to prayer.  He also taught basic principles of Islam to young children.  For this reason he became a target of the Taliban.  His personal safety was at risk and this is what lead to him seeking asylum elsewhere.

17.     There was no system for recording birth dates in his community and there was no such thing as a birth certificate.  Members of the community were sometimes required to undergo military service and often families would claim that children were younger than they were in an attempt to avoid sending them to military service. 

18.     He said that every few years there were communal discussions about how old people were and ages were ascertained by comparison with peers who were born around the same time and by guesswork.  Occasionally government officials would come to the community and ask the fathers to write down their children’s ages.  He said that he had no idea what his father would have told government officials.  He agreed that he really did not know how old he was, but he was convinced that the correct information was the information he first gave when he arrived in Australia which was that his year of birth was 1942.

19.     It was put to him that 5 months after arriving in Australia whilst in the Woomera Detention Centre and in his application for a Protection Visa (T19/95) his date of birth was recorded as being 1953.  He could not recall telling someone that he was born in 1953 some 5 months after his arrival in Australia and he said that he thought that was a misunderstanding.  He agreed that he had signed that application and that it had been interpreted to him before he signed it.   

20.     His evidence was that his wife was approximately 15 years younger than him.  He has a number of young children and his family remained in Afghanistan.

21.     He said that eventually he realised that his year of birth, as recorded in the files of the Department, was incorrect and he raised the matter initially in a letter from his solicitor at the South Australian Legal Services Commission (T42/249-50).

22.     The applicant is happy in Australia and very grateful for the life that he now lives.  He is now working as a gardener at Waterloo Corner.

23.     He agreed that he had no understanding of the Gregorian calendar upon his arrival in Australia.  His calendar was the Persian calendar and it is only after living in Australia for some time that he has gained some understanding of the Gregorian calendar.  He was reliant on interpreters upon his arrival in Australia and for some time afterwards to interpret accurately what he told them.

24.     He could not give any satisfactory explanation as to why the Refugee Review Tribunal (RRT) had recorded that at a hearing before them in 2004 his evidence was that he was born in 1947.  Upon further questioning, he told the RRT that he was “51 plus”.  The decision of the RRT was contained in the T documents and summarises the evidence given to the Tribunal by the applicant.

25.     The Wahdat Party Identity Card (ST2/275) was the only identification held by the applicant when he arrived in Australia in 1999.  He was unable to throw much light on what the numbers on that card referred to.  A translation was contained in the T documents.  He agreed that the number “1378” as it appeared on that card did coincide with the year 1999 of the Afghani calendar and the number “1325” coincided with 1946.  However, he did not think that “1325” applied to anything other than the number of the card.

consideration of other available evidence

26.     There was further information contained in the T documents and the supplementary T documents. 

27.     At pages 253 to 255 of the T documents there is a chronology summarising the references to the applicant’s year of birth as contained in various documents on the file of the Department.  This chronology was helpful and sets out the various dates of birth that have been recorded for the applicant since his arrival in Australia in 1999.  His date of birth, in terms of the Gregorian calendar, has been given at various times as being 1953 or 1942 with his evidence to the RRT (supra paragraph 24) raising possibilities of other dates.

28.     The Department tendered a calendar converter as Exhibit R3.  This showed some conversions of dates in the Persian calendar to the Gregorian calendar.

29.     Upon arrival in Australia, a date of 1942 was recorded as being the applicant’s year of birth.  Some months later when he was admitted to the Woomera Detention Centre and went through the processing his date of birth was again recorded as being 1942.

30.     In an application for a Protection Visa on 16 May 2000, made with the assistance of lawyers, his date of birth is shown to be 1953.  The document commences at T19/95 and contains details of his wife.  Her date of birth is shown as being 1965.  His children, according to that application, are a son born in 1987, a daughter born in 1988, a son born in 1990, a son born in 1993, and a daughter born in 1999.  Two dependant nephews are recorded as part of the family unit.  That application was accompanied by a submission prepared by his lawyer.  In the submission he states that at the time of the application, namely the year 2000, he was a “47 year-old Hazara and Shiite man from Afghanistan”.  This is consistent with a date of birth of 1953.

31.     Thereafter his date of birth continued to be recorded as 1953 in Departmental documents. 

32.     A decision was initially made by the delegate of the Department in October 2003 refusing his application for the grant of a Protection Visa (T33).  It is noted that at an interview on 22 May 2000 the applicant was recorded as having corrected inaccuracies in his initial statement and provided further information.  It is not clear what statement was referred to.  That decision reports his date of birth being 1953.

33.     The applicant sought review of that decision to the RRT and was successful in his application.  A record of the RRT’s decision and reasons for decision is contained at T36/213.  There is a summary of his evidence contained at T36/218 and it appears that he presented himself at that stage, ie in 2004, as being a 51 year-old Afghan male.  His evidence that he was born in 1947 and when further questioned he said he was 51 plus.  This evidence puts his age in 2004 as being either 57 years (consistent with a birth date of 1947) or it is consistent with him having at best a rough idea of the decade in which he was born.

contentions

34.     The Department contends that there is no burden of proof on the Department and that the Tribunal should follow the recent decision of Re Bashari and Ors and Minister for Immigration and Multicultural Affairs [2006] AATA 839 where Deputy President Forgie held that s 61 of the FOI Act does not impose a burden of proof upon the respondent in proceedings before the Tribunal reviewing a decision under s 48 of the FOI Act.

35. The Department contends that if the Tribunal finds that there is not a burden of proof imposed on the Department by s 61 then, unless the Tribunal is satisfied that there is evidence to support the applicant's claim that he was born in 1942, the current date of 1953 being used by the Department should not be disturbed as there is insufficient evidence that it is the incorrect date.

36.     The Department contended that the Department’s recording of the applicant’s date of birth was reactive to the information that was provided by the applicant and his advisers.  The Department suggested that the applicant may be motivated to obtain elderly benefits in his request to have his date of birth altered

37.     The Department further contends that if the Tribunal did determine that the correct date of birth was 1942, then they still have a discretion as to whether amendment should be ordered and “a not insignificant amount of material” would need to be amended.

consideration and application of the law

38. The first issue for the Tribunal is to determine is whether s 61(1) of the FOI Act is applicable in this case thereby putting the onus on the agency or Minister to establish that the decision given was justified.

39.     In Re Bashari Deputy President Forgie noted that the starting point in matters before the AAT is that neither party carries a burden of proof when the Tribunal reviews an administrative decision, although the position can be altered by Parliament. Section 61 of the FOI Act does make an express provision for an onus of proof in some review proceedings under the FOI Act.

40. In her analysis in that case, she concludes that s 61(1) does not apply to an application for amendment or annotation of personal records under s 48 of the FOI Act. She refers to s 55 of the FOI Act which is the statutory provision providing for applications for review to this Tribunal. She distinguishes between the sort of applications referred to in s 55(1)(a), (aa) and (ab) which are clearly linked to a “request for access to a document” and s 48 applications. She goes on to comment as follows:

“Three of the decisions described in s 55 do not relate, expressly or implicitly, to a request for access to a document. The first is s 55(1)(c) … The other two are found in s 55(1)(g) and (h). They are decisions that relate to an “application made under s 48” i.e. an application to amend or annotate a record of personal information and so an application made under Part V of the FOI Act.

The variation in language in s 55 appears quite deliberate.  A request for access to a document is quite different from an application for amendment or annotation.  After all, an application for amendment or annotation may be made in respect of a document that has already been lawfully provided to the person … A request for access to a document is for a document that the person presumably does not have …

The distinction is continued in s 61(1). That section does not refer to a decision relating to ‘an application made under s 48’ or to a decision refusing an extension of time but to a ‘decision given in respect of the request’. It does not refer to the agency or Minister to which or to whom an application was made under s 48 but to the agency or Minister to which or to whom the request was made … The fact that there is no reference to s 48 or to an application, strongly suggests that the onus provisions are not intended to apply to a decision regarding an application under s 48.”

41. A definition of “request” is contained in s 4(1) of the FOI Act in the following terms:

4  Interpretation

(1)       In this Act, unless the contrary intention appears:

…

request means an application made under subsection 15(1”)

42. An application under s 15(1) is an application for document disclosure and is not an application under s 48 of the FOI Act. Deputy President Forgie therefore reaches the conclusion that in s 48 applications there is not a burden of proof imposed on the respondent and s 61(1) has no application.

43. In arguing that this Tribunal should follow that line of authority, the Department referred the Tribunal to the explanatory memorandum to the FOI Act which was not specifically referred to by Deputy President Forgie in Re Bashari, but which is consistent with her conclusion with respect to the burden of proof under s 61.

44. A reading of that explanatory memorandum reinforces the conclusion reached by Deputy President Forgie with respect to the applicability of s 61 to requests for amendments of a record.

45. The explanatory memorandum states that the intention of s 61 (at that time known as clause 51) was as follows:

“Clause 51 places the onus of establishing that a decision given in respect of a request was justified on the agency or Minister to whom that request was made.  This is because the applicant does not have access to the document concerned, and so is not necessarily in a position to argue that the decision was wrong.”

46. In the circumstances the Tribunal agrees with Deputy President Forgie that s 61(1) of the FOI Act would not appear to have application to requests under s 48 to amend or annotate personal records. The Tribunal must therefore consider all the available evidence and determine the correct and preferable decision on the basis of that evidence.

47.     The Tribunal has carefully considered the evidence with respect to the applicant’s date of birth and had the opportunity to observe the applicant.  The Tribunal was not in a position to guess at his age based on appearance, however the applicant could easily present as a person in his mid-50s consistent with the date of birth of 1953.  He could equally be a youthful looking 65 year-old.  The Tribunal draws no conclusion based on the applicant’s appearance.

48.     The applicant comes from a community where birth certificates appear to be non-existent and where people are not aware of their specific ages.  Age is quite a different concept and is guessed at in a general way by members of the community.  No birthdays are celebrated in his area and he has an approximate idea of how old he is.

49.     When he first arrived in Darwin he was speaking exclusively through translators and it appears that there was a reference to his date of birth as being 1942 which was then carried through a number of documents until solicitors applied for a protection visa some 5 months later.  At that point some more detailed work was done with the applicant as can be seen by his solicitor’s submission contained at T19.  From that point onwards his date of birth appears as 1953.

50.     Before the RRT the applicant gave evidence that would point to his birth date at being from 1947 to 1953, rather than 1942, which he now alleges.  The RRT's decision as contained in the T documents indicates that he was questioned about his age and at no stage did he give his date of birth as 1942.

51.     The age of the applicant’s children and the age of his wife are more consistent with him being born in the 1950’s rather than the early 1940s.  He told this Tribunal that his wife was 15 years his junior and that she was born in 1965 which would put his date of birth at around 1950.

52.     It is not up to the Tribunal to second guess his date of birth and the applicant himself is not aware of his specific date of birth.

53.     In the circumstances, and given the specific work that was done with the applicant to obtain his protection visa and then to review the application, all of which state his date of birth to be 1953, the Tribunal is not satisfied that it should now revert to the initially recorded date of 1942.  The recording of that date could well have been the outcome of an incorrect translation of an Afghani date by the Darwin translator. 

54.     The applicant on his own account could not have told anyone that he was born in 1942 when he came to Australia as he did not understand the Gregorian calendar.  He could only provide his date of birth as per the Persian calendar and rely on a translator to interpret it to the Gregorian calendar.

55.     The Tribunal is not satisfied that there is sufficient evidence to persuade the Tribunal to direct that the records be altered.  The overall picture which emerges from all available evidence indicates that it is likely that the applicant was born after 1950.

decision

56.     In the circumstances the Tribunal affirms the decision under review.

I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell

Signed:         .....................................................................................
  Associate

Date of Hearing  22 November 2007
Date of Decision  29 January 2008
Advocate for the Applicant       In person
Advocate for the Respondent   Mr C Floreani
Solicitor for the Respondent     AGS